Barber v. South East Community Care Access Centre, 2012 HRTO 368

Human Rights Tribunal of Ontario

B E T W E E N:

Carrie Barber by her litigation guardian Sheila Barber

Applicant

-and-

South East Community Care Access Centre and

Her Majesty the Queen in Right of Ontario as represented by the Minister of Health and Long-Term Care and the Minister of Community and Social Services

Respondents

-and-

ARCH Disability Law Centre

Intervenor

INTERIM DECISION

Adjudicator: David A. Wright

Date: February 22, 2012

Citation: 2012 HRTO 368

Indexed as: Barber v. South East Community Care Access Centre

appearances

Carrie Barber by her litigation guardian Sheila Barber, Applicant | Hugh Scher, Counsel South East Community Care Access Centre, Respondent | Shane Smith, Counsel ARCH Disability Law Centre, Intervenor | Tess Sheldon, Counsel

Decision

1The issue in this Interim Decision, as in Yuill v. Canadian Union of Public Employees, 2012 HRTO 366, and G.M. v. Ariss Place Residential Care and Treatment, 2012 HRTO 367, is whether a proposed litigation guardian has a conflict of interest that disqualifies them from representing another person. The respondent South East Community Care Access Centre (“CCAC”) argues that because the propriety of the actions of Sheila Barber, the proposed litigation guardian for Carrie Barber, are being raised in the proceeding by the respondent, she has a conflict of interest that disqualifies her from acting. Applying the principles set out by the courts, I find that Ms. Barber is an appropriate litigation guardian. There is no dispute that Ms. Carrie Barber does not have the capacity to conduct this Application on her own behalf.

2The Application stems from the provision of support services to the applicant, who has a complex disability. The CCAC refused to continue to provide certain services, and its explanation is that its reasons for doing so related to the improper actions of Sheila Barber during disputes with it. The respondent says that this creates a conflict of interest, since Sheila’s actions will be in question and the desire to vindicate her position may influence her to take positions that are not in Carrie Barber’s best interests.

3The analysis of whether there is a conflict of interest is discussed in Yuill v. Canadian Union of Public Employees¸ 2012 HRTO 366, released concurrently. In that case the Tribunal stated as follows at para. 3:

Neither the possibility that the litigation guardian has an additional interest furthered by the litigation nor hypothetical differences in interest should lead to disqualification.

4At paras. 4-7, the Tribunal held:

A litigation guardian must be qualified and prepared to act, with no conflict of interest in relation to the interests of the incapable adult. The absence of conflict of interest is sometimes described as “indifference” as to the outcome of the proceedings. As the Supreme Court explained in Gronnerud (Litigation Guardians of) v. Gronnerud Estate, 2002 SCC 38 at para. 20:

The third criterion, that of “indifference” to the result of the legal proceedings, essentially means that the litigation guardian cannot possess a conflict of interest vis-à-vis the interests of the disabled person. Indifference by a litigation guardian requires that the guardian be capable of providing a neutral, unbiased assessment of the legal situation of the dependent adult and offering an unclouded opinion as to the appropriate course of action. In essence the requirement of indifference on the part of a litigation guardian is a prerequisite for ensuring the protection of the best interests of the dependent adult. A litigation guardian who does not have a personal interest in the outcome of the litigation will be able to keep the best interests of the dependent adult front and centre, while making decisions on his or her behalf. Given the primacy of protecting the best interests of disabled persons, it is appropriate to require such disinterest on the part of a litigation guardian.

Gronnerud was an estate dispute. Two of Cherie Gronnerud’s four children sought to be her litigation guardians in an action for a greater share of her deceased husband’s estate, which would have decreased the share of one of the other children who had been left the majority of the estate. Ms. Gronnerud was an elderly woman with advanced Alzheimer’s disease. The result of a successful action would have been the sale of the family farm, which Ms. Gronnerud had expressed when she was well that she wished to keep intact. There would have been no benefit to her from the assets, but it would have resulted in a greater inheritance for the proposed litigation guardians, since Cherie’s estate would be split equally among the four children when she died. The children were found to have a conflict of interest, since a successful action would have resulted in direct financial gain for them at the expense of another close family member. In reaching this conclusion, the Court also relied upon the fact that there was a longstanding and acrimonious dispute between the children about their parents’ estate, and held that this acrimony meant that the necessary indifference was lacking.

Other cases have found that a level of conflict and acrimony between the proposed litigation guardian and an opposing party may constitute a conflict of interest. ln Fischer (Litigation guardian of) v. Balofsky, [2005] O.J. No. 2152 (Sup. Ct.) the mother was the litigation guardian for her son in an action for damages for personal injuries to her son, where the father was one of the defendants. At the same time, the mother and father were involved in a highly acrimonious family law action. The father sought an order removing the mother as litigation guardian. The Court removed the mother as litigation guardian, finding, among other things, that there was a possibility that the acrimony that existed between the parents could adversely affect the mother's decisions during the course of the tort litigation. The Court cited evidence of "hostility" between the mother and the father in support of this finding. This "high level of acrimony" suggested to the Court that the mother "might well, consciously or unconsciously, not be as objective as she should be with respect to decisions that arise in the course of the litigation... " (para. 8).

In a series of decisions since Gronnerud, the Ontario courts have held that it should not be applied so as to disqualify a prospective litigation guardian unless a clear conflict has been demonstrated. The criterion of “indifference” is the same as a requirement that there be no conflict of interest. In Chow v. Law, [2007] O.J. No. 1669 (S.C.), the Court held that where both the prospective litigation guardian and the dependent adult stood to benefit from the action, there was no conflict. The Court based its conclusion on the fact that it could not find that the proposed litigation guardian had acted contrary to the interests of the dependent adult. In Shemesh v. Goldlist, [2008] O.J. No. 1629 (S.C.) the Court held that more than a perception of conflict of interest is required; there must be some actual conduct or misconduct. It found that a “high level of distrust between the parties” did not exclude the possibility of appointing one person as a litigation guardian. These authorities were followed in Owen v. Owen, 2010 ONSC 2852 and Zabawskyj v. Zabawskyj, 2008 CanLII 19248 (ON S.C.). In my view, they represent the current state of the law in Ontario.

5The authorities require that there be a clear and demonstrated conflict of interest, rather than just a potential for conflict. None has been shown here. While Sheila’s actions may be at issue if this case proceeds to a hearing on the merits, any interest in vindicating her actions would not conflict with an interest in pursuing Carrie’s rights. As in Chow, while both the litigation guardian and the dependent adult may stand to benefit from the Application this does not mean there is a conflict.

6The situation in this case – where a caregiver comes into conflict with a service provider that allegedly interferes with the ability of the service provider to carry out their work is not an uncommon one in proceedings before this Tribunal. Family members who care for children or persons with disabilities are often, understandably, vigorous advocates for the interests of the people they care for as they see them. Service providers may have a different view of what is necessary for a client or of the obligations of the family member. This sometimes causes conflict and tension and allegations that the other party has not acted in the child or dependent adult’s best interest. The Tribunal should be reluctant before relying on such conflict and differences of opinion as grounds for excluding the person who wishes to bring an Application on behalf of a family member as it would unfairly impede access to the Tribunal’s process for persons under legal disabilities. If the actions of the family member were improper, or show that there was not discrimination, this will come out through the litigation process.

7Sheila Barber is appointed litigation guardian for Carrie Barber. The next steps in this Application are set out in a Case Assessment Direction delivered with this Interim Decision.

8I am not seized.